BEGIN THE TRUMP RESISTANCE PLAN BEFORE IT’S TOO LATE

[This article fist appeared on billmoyers.com on January 9, 2017]

Note from Bill Moyers:  I’m pleased to officially welcome Steven Harper to our site. Steven retired early from a successful career as a litigator to write – and write he has done, including two acclaimed books — The Lawyer Bubble — A Profession in Crisis and Crossing Hoffa – A Teamster’s Story (a Chicago Tribune “Best Book of the Year”). He’s currently working on another, from which I’ve read some riveting excerpts, about the recent downfall of a New York law firm once led by New York State Governor and two-time presidential candidate Thomas Dewey. 

Steven Harper blogs at his site The Belly of the Beast (https://thelawyerbubble.com/), contributes regularly to the monthly magazine The American Lawyer, and is an adjunct professor at Northwestern University. When I read one of his short essays recently and some of his work on his current book project, I invited him to contribute a series of articles providing insights into current events. You can follow him here on our site and on Twitter at @StevenJHarper1. 

 

“Begin The Trump Resistance Plan Before It’s Too Late”

“Immediate necessity makes many things convenient, which if continued would grow into oppression…” 

— Thomas Paine, Common Sense (1776)

Ordinary citizens searching for the convenient satisfaction of immediate necessity are Donald Trump’s unwitting allies in an unseen war on democracy. It’s difficult to blame them. Most Americans are busy leading frenetic lives. In sound bites, they receive what passes for news; there’s no time to confirm its veracity. Politicians like Trump tell them what they want to hear; it pleases them. But quick solutions displace efforts to understand complicated challenges for which there are no easy answers.

Short-term convenience can produce long-run peril. Waiting for Trump’s America to reveal itself assures his victory and the republic’s loss. Perhaps more precisely, it could assure the loss of the republic. Successfully resisting the dangerous Donald Trump requires united action toward a common goal, thoughtful strategy, and flexible tactics.

The Goal

The objective of The Trump Resistance Plan (TRP) must transcend America’s politics and culture wars. Citizens of good will across the political spectrum will always disagree on matters of public concern. That’s healthy democracy.

The larger battle at hand pits democracy against an unknown fate. Throughout the world, populist nationalism is joining with authoritarian leaders to upend longstanding democracies. To repel this historic assault on our shores, the TRP proposes a goal that should find universal acceptance among Republicans, Democrats and independents.

For 230 years, two norms have anchored American democracy. One is that elections must be free of foreign interference. Another is that the presidency must be free of institutionalized corruption. Trump is undermining both. The TRP’s single goal is to preserve those norms.

The importance of the first is clear. America sought independence from the tyranny of remote rule. Foreign agents that subvert our most important democratic process – voting – are enemies. Any citizen giving aid or comfort commits treason. Trump’s belittling of U.S. intelligence conclusions that Russia hacked the election to help him win seems to qualify.

The second norm distinguishes the United States from countries where tyrants increase personal wealth and power at the expense of the people. That principle, too, has roots in the founding of our nation as a rebellion against a king and his corrupt government. Even the appearance that presidential acts are for sale is incompatible with democracy. Trump’s refusal to release his tax returns, liquidate his business holdings, and relinquish his finances to a truly independent blind trust violates that norm.

The Audience

No patriot can reasonably resist the TRP’s goal. After all, it’s not tit-for-tat politics designed to exact revenge for Republican recalcitrance during President Obama’s eight years, although some might prefer that myopic mission. Policy outcomes are important. But the current stakes are greater than the ebb and flow of typical political battles.

To succeed in eradicating two norms that underpin American democracy, Trump requires a compliant Republican Congress. Many GOP members opposed Donald Trump’s candidacy. They knew he lacked the experience and temperament to govern. Rationalizing that anything – even an erratic, irrational, and self-aggrandizing Trump – was better than Hillary Clinton, almost all of those detractors succumbed to his bullying and fell in line.

Now some of those same Republicans have learned that they were actually falling in line with Vladimir Putin. That alone should create a case of buyer’s remorse. But Trump can offer them a deal. They get his support for the hard-right policies that many Republicans have wanted for years. In return, all they have to give him is what he wants: fracturing the two central norms of American democracy. Perhaps some of them now realize that they are playing out a script for which only Putin, Trump and his minions know the ending.

Senator Majority Leader Mitch McConnell (R-KY) doesn’t care. He wants Trump’s deal. Sorting out conflicts of interest for members of what will become the wealthiest cabinet in modern history is a big job. The absence of a thorough Trump transition team vetting process makes it even bigger than usual. But McConnell is working with Team Trump to give the Office of Government Ethics – and the American people – the bum’s rush.

The Challenge

Putin’s stain on Trump’s election is permanent. Everything that he does as president comes with a taint. Everything. Likewise, his failure to eliminate his conflicts of interest means that every presidential act brings with it a presumption of corruption. Any member of Congress who supports legislation that he signs on any subject gets dragged deeper into his mud.

The two norms he seeks to destroy are threshold issues for the moral authority of his office. Whether his actions take the form of appointments, signing legislation, or issuing executive orders does not matter. All are fruit of a poisonous Trump election tree. Whether the subject is health care, tax reform, trade or anything else, the stench of election scandal and a presumption of corrupting financial conflicts of interest hang over everything he touches.

Surely a handful of Republican Senators can find sufficient strength to become profiles in courage. It takes only three heroes to flip his 52-48 margin in the Senate into a bulwark that protects liberty from his assault. Then he’d have to deal with those representing the majority of voters who wanted someone else in the Oval Office. That won’t eliminate his Putin election cloud or the taint of his presumed self-dealing, but it’s a start.

The Stakes

Shortly after the election, The New York Times’ editorial board wrote that it was “ready to support” Trump, “without denying the many disgraceful things he did and said to get elected, the promises he may or may not keep, the falsehoods he peddled that were either delusions or lies.”

Such compartmentalization is treacherous. Character is destiny. The country cannot allow Donald Trump’s character to determine its destiny. In his battle to obliterate the two norms without which democracy cannot exist, every conscientious citizen should force him and his minions to fight for every inch of ground.

No shot has been fired, but make no mistake: the war for America began on November 8.

Turn off your reality-TV shows, folks; this is real.

THE DANGEROUS NORMALIZATION OF DONALD TRUMP

[This article first appeared at billmoyers.com on January 5, 2017]

There’s a way to keep our short attention spans and Trump’s norm-shattering behavior from damaging the republic: “Expose and Oppose.”

The Dangerous Normalization of Donald Trump

[W]hatever is going to happen is really here now — if only one could see it.”
— H.G. WELLS, 1916

Americans are living through the dangerous effort to normalize the abnormal candidate who won the presidency with a record popular vote deficit of nearly 3 million ballots. Donald Trump has about the same popular support as losing candidates Michael Dukakis (1988) and John Kerry (2004). But that won’t slow him down.

As with many insecure leaders, he’ll attempt to govern as if he had a mandate for sweeping change. He doesn’t. Any mandate resides with the opposition.

The first step in his path toward a destination that only he knows is normalizing him. He’ll succeed and, in the process, subject the republic to incalculable damage only if others let it happen or, even worse, assist him. This column is the first in a series outlining a way to prevent that calamity. I call the strategy “Expose and Oppose.”

Nationwide Attention Deficit Disorder

When leaders fail to respect the underlying behavioral norms of a democratically elected government, its days become numbered. Donald Trump has already shattered some of the most important norms. How quickly many Americans seem to have forgotten his stunning deviations:

— Using crude language to foment ethnic, racial and religious divisions under the guise of discarding political correctness;

— Eliminating reasoned discourse about competing policies and replacing it with name-calling that branded opponents and diverted attention from his inability to offer a coherent set of ideas;

— Bragging about his sexual predation and misogyny;

— Attacking journalists and anyone else who criticized him, thereby transforming them into defenseless targets;

— Embracing dictators who rule America’s dangerous adversaries;

— Becoming a purveyor of “fake news”;

— Refusing to release complete medical records necessary to assess the health of any presidential candidate;

— Stonewalling requests for personal tax returns that would permit voters to evaluate the financial implications of his past, present and future actions; and, most importantly:

— Lowering the bar for assessing his conduct far below that applied to anyone who ever sought the country’s highest office.

As each outrageous act surpassed its predecessor, Trump fatigue settled on the land. People became acclimated to his antics. Grading him on a curve — “Not bad for Trump” — was the only way he could pass the course. As the election neared, he submitted lower and lower scores.

Trump’s reward for such unprecedented bad behavior was a tenuous Electoral College win — he placed 46th out of 58 elections. Now for the punchline: Trump’s presidency is an inflection point in the great American experiment of self-government.

Shattering Post-Election Norms

Trump’s campaign misconduct pales in comparison to more serious norm-busting behavior since the election. Even before taking the oath of office, the president-elect has brought greater instability to the United States and the world order.

— The “one-president-at-a-time” rule whereby a president-elect allows the incumbent to finish his term without interference until Inauguration Day — an honored tradition since the founding of the republic. Trumped!

— The long-standing “one China” policy. Trumped!

— Fifty years of bipartisan nuclear arms reduction efforts. Trumped!

— Divesting business and investment holdings to avoid conflicts of interest that undermine the integrity of the presidency. Trumped!

America At a Crossroads

What norms Trump will jettison after entering office? Imagine the worst, but the most important ones probably are beyond anyone’s contemplation. There’s not a moment to lose.

For those resisting Trump, the challenge is enormous. Complementing his vile messages was the three-headed hydra of disorientation, distraction and dissembling — hallmarks of his candidacy. The election was never about competing substantive policies, but its outcome provided the positive reinforcement necessary for Trump and his minions to continue pursuit of their strategy toward ends that only he and they know.

Since Nov. 8, he has doubled down. The first 100 days of his presidency will be worse. Much worse. Watch them carefully.

A frustrated majority who never wanted a President Trump now say, “I feel helpless. What can I do?”

Help is on the way, but it won’t be an easy or quick fight. The winning strategy will test a people whose attention span is short and whose need for instant gratification is profound. Only an organized, systematic effort can combat the chaos that President Trump is already inflicting from Trump Tower.

Justice Louis Brandeis was right: “Sunlight is the best disinfectant.”

But sometimes sunlight is only a good start. A potent antibiotic is necessary to eradicate the most severe infections.

TRUMP ALERT

On New Year’s Eve, Trump said he “knew things that other people don’t know” about Russian hacking and promised revelations by Tuesday or Wednesday. Today is Thursday.

In the interim, he derided what he called American “‘Intelligence’ on so-called ‘Russian hacking.'” And Trump cited Julian Assange as his authority on Russian hacking and the U.S. media. Senator Lindsay Graham describes Assange as a man “who has a history of undermining American democracy.”

While the world awaits Trump’s big reveal, the print edition of the Wall Street Journal carries this front page headline: “Trump Plans Spy Agency Overhaul.”

He can’t change the facts that cast a dark cloud over the legitimacy of his presidency, but he can appoint people who will bury them.

TRUMP ALERT

It turns out that the Jonathan Karl/Sean Spicer “Worst Interview of New Year’s Day” previewed the Trump Team’s latest Russian hacking denial/obfuscation/diversion strategy.

On January 1, Karl asked Spicer whether Trump would accept the unanimous U.S. conclusion of U.S. intelligence agencies that Russians had hacked the election. Spicer rambled about inadequate DNC cybersecurity and offered this false equivalence relating to one of the Democratic primary debates:

“Why aren’t we talking about Hillary Clinton getting debate questions ahead of time?”

Today, Trump tweeted:

“Somebody hacked the DNC but why did they not have ‘hacking defense’ like the RNC has and why have they not responded to the terrible things they did and said (like giving the questions to the debate to H). A total double standard! Media, as usual, gave them a pass.”

And this:

“Julian Assange said ‘a 14 year old could have hacked Podesta’ – why was DNC so careless? Also said Russians did not give him the info!”

And this:

“@FoxNews: Julian Assange on U.S. media coverage: ‘It’s very dishonest.’ #Hannity ‘More dishonest than anyone knows.'”

Perhaps the the U.S. Constitution’s emoluments clause isn’t the only lurking legal problem for Trump:

“Whoever, owing allegiance to the United States…adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason…” (18 U.S.C. Sec. 2381)

TRUMP’S DANGEROUS NORMALIZATION EFFORT AND THE ROLE OF THE LEGAL PROFESSION

Norman Eisen and Richard W. Painter were, respectively, chief White House ethics lawyers for Presidents Barack Obama and George W. Bush. For months before the election, they wrote and spoke frequently about the dangers associated with Donald Trump’s disdain for the established norm of releasing presidential candidates’ tax returns. They warned about unprecedented business conflicts of interest that Trump would face as president. Since the election, they’ve urged divestiture, liquidation, and a blind trust as the only effective ways to resolve those conflicts.

The editorial boards of The New York Times and The Wall Street Journal agree with Eisen and Painter. But on December 10, Edwin D. Williamson at Sullivan & Cromwell penned an op-ed for the Journal that tries to let Trump off the conflicts hook.

“If I were advising Trump,” Williamson writes, “I would strongly urge him to pledge that as president he will make no decision for the primary purpose of benefiting any family financial interest, and any decision involving an entity that has a Trump business relationship will be transparent so questions of favoritism can be scrutinized.”

That’s Williamson’s proposed remedy: a pledge of fidelity, coupled with a promise of transparency from a serial liar who still refuses to release his tax returns. Would he accept that undertaking from opposing counsel to settle a case that Williamson’s client was sure to win? Seasoned litigant Trump sure wouldn’t.

But here’s Williamson’s most dangerous line: “I do not see how he can effectively promise more, and I do not believe more is needed.” He then spins frivolous false equivalence arguments that give all attorneys a bad name.

Excuses, Excuses, Excuses

Williamson’s first hypothetical scenario is the sale of Trump’s interests through an initial public offering. Because the president can appoint a majority of the SEC commissioners, Williamson believes that Trump would be trading one conflict (his business interests) for another (his influence over the SEC as it supervised Trump’ IPO).

Williamson’s second liquidation scenario is a leveraged buyout. Because it would require lending by Trump-regulated banks, that would create a new conflict, too, he writes.

Such sophistry is suffocating. Neither option creates a conflict of interest approaching the magnitude of those that will accompany Trump’s continued ownership of his businesses after Inauguration Day. In fact, Williamson final argument proves it.

Self-Refuting

“[T]he biggest problem of divestiture is that the value of Trump businesses is significantly dependent on, and inextricably tied to, the Trump name,” Williamson writes.

Precisely. The prospect of enriching Trump and his family personally is what entices others — foreign and domestic — to patronize Trump businesses in an effort to curry the President’s favor. It’s already happening at Trump’s new Washington, D.C. hotel.

In a joint letter to The New York Times, Harvard Law School Professor Laurence Tribe and Mark Green, New York City’s first public advocate, explain:

“The Constitution’s Emoluments Clause is unambiguous. It forbids an American president from accepting anything of value from a foreign entity, without congressional consent, because that would open the door to bribery or extortion.”

Tribe and Green continue, “The only way for President-elect Donald Trump to cure this problem would be an arms-length sale by a public trustee, not piecemeal judgments after Jan. 20 about the thousands of possible winks and nods between foreign leaders and the new administration.”

Professional Responsibility in the Age of Trump

Lawyers understand the relationship between preserving vital democratic norms and protecting democracy. Zealous advocacy is one thing. But attorneys err when they offer feeble justifications that aid and abet Trump’s insidious effort to normalize behavior that is not only abnormal, but also wrong. The bad news is that the effort is having an impact. Consider the number of commentators who now start from the false premise, “Well, he can’t sell his businesses….”

Why not?

As Tribe and Green observe, “Mr. Trump chose to put himself in this situation and cannot now act aggrieved, nor is there a too-big-to-sell exemption in the Constitution; if anything, the larger the potential for conflict, the more urgent a sell-off.”

“There’s no precedent,” proclaim Trump’s conflict of interest apologists.

Actually, plenty of analogous precedent resides in the conflict of interest rules applicable to all practicing attorneys. No lawyer can serve two conflicting masters simultaneously, regardless of good faith efforts to be fair and honest to both. And the appearance of conflict is equally debilitating.

Williamson dismisses such appearances as “impossible to avoid” because “almost any decision Mr. Trump makes as president will have an effect — good or bad — on his business interests.” But that argument demonstrates again why Trump must sell those interests, as Eisen, Painter, Tribe, Green, and other attorneys across the political spectrum urge.

Donald Trump isn’t a lawyer, but he will have fiduciary duties to the most important client in the world: the United States of America. At a minimum, all attorneys should hold him to the standard that the country deserves.

Don’t Give Up

Columnist Charles M. Blow offers this creed that’s worth remembering every day:

“To have a president for whom we don’t know the extent of his financial entanglements with other countries — in part because he has refused to release his tax returns — is not normal.

“To have a president with massive, inherent conflicts of interest between continued ownership of his company and the running of our country is not normal.

“Presidents may be exempt from conflict of interest provisions in the law, but exemption from legal jeopardy is not an exemption from fact or defilement of the primacy of a president’s fiduciary duty to empire above enterprise…

“[H]istory will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!”

Lawyers should be leading the charge to those rooftops, not blocking the path.

TRUMP ALERT

The worst Sunday morning interview on New Year’s Day:

ABC’s Jonathan Karl asks Trump’s White House Communications Director/Press Secretary-designate Sean Spicer if Trump will finally accept the unanimous conclusion of all U.S. Intelligence agencies that Russians hacked the presidential election. Spicer dissembles and deflects.

SPICER: “Why aren’t we talking about the influence, other influences on the election? Why aren’t we talking about Hillary Clinton getting debate questions ahead of time? That’s a pretty valid attempt to influence an election…When are we going to start talking about the other side of this. Which is what did Hillary Clinton do to influence the election? Is she being punished in any way? What are we doing to make sure that people don’t get the debate questions ahead of time…”

KARL: “Just to be clear, that was during the Democratic primary, it was not in the debates with Donald Trump. But let me move on.”

Now we know the next false equivalence argument that Trump will utilize in minimizing the significance of Russian hacking that put a thumb on his side of the election scale.

Jonathan Karl is Chief White House Correspondent for ABC News. If he doesn’t grow a spine, bombastic bullies like Spicer will keep running over him — and all of us.

TRUMP CLAIMS MANDATE; FACTS SAY OTHERWISE

Donald Trump’s Big Lies work. More than half of Republicans believe that he won the popular vote. In fact, he lost by a record 2.8 million ballots. His always frivolous claim that millions of people voted illegally — presumably for Hillary Clinton — has now been “unambiguously debunked.” The historical record is now complete: Trump’s popular vote performance was worse than many recent candidates who lost their elections.

Popular vote:

Trump: 46.2% — 8th lowest winning percentage in history

Clinton 48.3%

Trump’s total compared to modern losers:

Nixon: 49.5 (1960)

Ford: 48.0 (1976)

Gore: 48.4 (2000)

Kerry: 48.3 (2004)

Romney: 47.2 (2012)

TRUMP: 46.2

Dewey: 45.9 (1944)

Dukakis: 45.7 (1988)

McCain: 45.7 (2008)

Imagine Trump’s outrage if he had: won the popular vote by Clinton’s margin over him, lost in the electoral college by a mere 75,000 votes spread across three states (MI, PA, WI), and every U.S. intelligence agency subsequently concluded that Putin had interfered with the election specifically to help Clinton win.

On Election Night in 2012, when it appeared that Obama might lose the popular vote but win in the electoral college, Trump’s 45-minute rant included this tweet: “We should have a revolution in this country!”

Moral: Beware of authoritarian leaders who lie about non-existent popular mandates to justify extreme actions in consolidating and retaining power. The historical precedents are numerous and ugly.